Civil Rights in International Law: Compliance with Aspects of the "International Bill of Rights"

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Civil Rights in International Law: Compliance with Aspects of the

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Simmons, Beth. 2009. Civil rights in international law:

Compliance with aspects of the "International Bill of Rights."

Indiana Journal of Global Legal Studies 16(2): 437-481.

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doi:10.2979/GLS.2009.16.2.437

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Civil Rights in International Law:

Compliance with Aspects of the ‘International Bill of Rights’

Beth Simmons

Department of Government

Weatherhead Center for International Affairs

Harvard University

bsimmons@wcfia.harvard.edu

Prepared for the Workshop on Global Constitutionalism: Process and Substance

Thursday 17th January – Sunday 20th January 2008, Kandersteg, Switzerland

Abstract:

International law has developed what many might consider a constitutional understanding of individual civil rights that individuals can claim vis-a-vis their own governments. This paper discusses the development of aspects of international law relating to civil rights, and argues that if this body of law is meaningful we should see evidence of links between acceptance of international legal obligation and domestic practices. Recognizing that external forms of enforcement of civil rights is unlikely (because not generally in the interest of potential "enforcers"), I argue that international civil rights treaties will have their greatest effect where stakeholders - local citizens - have the motive and the means to demand treaty compliance. This is most likely to be the case not in stable autocracies, where such demands are likely to be crushed, nor in stable democracies, where the motive to mobilize is attenuated due to rights saturation, but in transitional countries where the expected value of mobilization is maximized. Thus, I test the hypothesis that the International Covenant on Civil and Political Rights is likely to have its greatest positive effects in transitional countries - those that have had some fleeting experience with democratic governance. This proposition is tested quantitatively with indicators for freedom of religious practice, fair trials and the death penalty. The proposition is weakly supported by extremely stringent statistical models that control for the endogeneity of the treaty commitments, country and year fixed effects, and other obvious influences on civil rights practices. I conclude that the International Bill of Rights has the power to influence the direction of rights practices in fluid political situations, but cannot magically transform autocracies into liberal guarantors of civil liberties. Still, these effects are important, and the most we can expect from scraps of paper which the international community has been reluctant to enforce.

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Civil Rights in International Law:

Compliance with Aspects of the ‘International Bill of Rights’

Scholars, international lawyers and activists have grown accustomed to the claim that an identifiable set of international instruments constitute “The International Bill of Rights.”1 The Universal Declaration for Human Rights (UDHR)2 along with two binding treaties, the

International Covenant for Civil and Politic Rights (ICCPR) 3 and the International Covenant for Economic, Social and Cultural Rights (ICESCR)4 have come to be thought of as international society’s clearest expression of a core set of human rights commitments with “constitutional” status in international law. The purpose of this paper is not to contest the claim of these agreements’ constitutionalism. Rather it is to ask whether the promulgation of the rights contained in these agreements over past five decades has contributed to their realization. Empirically, what has the “International Bill of Rights” contributed to the realization of these rights around the world?

The emphasis of this paper is empirical, but it is based on several theoretical claims. First, the ratification of human rights agreements can stimulate domestic demands for their realization that certain governments might find costly to recognize or to cope with. Groups begin to form to demand their rights once these are formally acknowledged by governments through ratification, though the incentives to mobilize will differ predictably across different kinds of political regimes. Furthermore, the greater groups’ ability to monitor the government, the greater will be the pressures to comply with international legal obligations protecting civil rights. There is some evidence that the “International Bill of Rights” has contributed to an improvement in certain civil rights practices, around the world, largely because of the public commitment ratification requires. Ratification stimulates demands for compliance, making it harder than it would otherwise be for a government to ignore international civil rights norms.

The paper is organized as follows. The first section provides some background and discusses the place of civil rights in international law. The second section provides some

1

Among many sources, see Henkin 1981.

2

Universal Declaration of Human Rights, Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948. Text at http://www.un.org/Overview/rights.html.

3

International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976. Text can be found at http://www1.umn.edu/humanrts/instree/b3ccpr.htm.

4

International Covenant on Economic, Social andCultural Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976. Text at http://www.unhchr.ch/html/menu3/b/a_cescr.htm.

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theoretical justification for expecting treaties to influence civil rights and potentially other human rights practices. The remaining sections are empirical and test the proposition that treaty

ratification – focusing on the ICCPR and its optional protocol relating to the death penalty – have had a significant “commitment effect.” The pattern of evidence supports the idea that this effect is conditional. It is strongest where domestic groups have both the motive and the means to make civil rights demands of their government. Furthermore, it is strongest in cases in which the right in question is centrally violated and relative easy to detect and monitor. I compare the evidence across three civil rights areas: freedom of religion, fair trials, and the death penalty. The key finding is that international legal obligations make an important and positive difference to practices in these three areas, but the greatest differences are to be found where citizens have the capacity and motivation to mobilize and for rights that are most easily observed and monitored.

I. Background: Civil Rights and International Law

Civil and political rights were one of the first areas to be addressed by the international human rights treaty regime that was negotiated in the mid-1940s. Along with economic and social rights, they were the central core – the first 19 articles – of the Universal Declaration of Human Rights, passed unanimously by the General Assembly in 1948. But for reasons that have been discussed elsewhere5 – foot dragging, notably by the major powers – it took 18 years to agree upon a binding treaty covering civil and political rights, and to then negotiate its contents (despite the fact that most of its provisions were already contained in the Universal Declaration itself).6 At the insistence of the United States, a move was made to bifurcate the social and economic rights on the one hand from the civil and political on the other. The ICESCR contains the codification in treaty form of the former, while the latter are encoded in the ICCPR. The ICCPR, along with the ICESCR and the Universal Declaration, are often referred to collectively (if loosely) as the “International Bill of Rights.”7

The ICCPR is the primary global treaty devoted to what people have come to call “first generation” human rights.8 These are the complex of “Enlightenment rights” that in their day were crucial in overthrowing feudalism and shattering the uncontested divine right of kings.9

5

Simmons forthcoming: ch. 2.

6

See Articles 3-21 of the UDHR. Many scholars also hold that at least some of the obligations found in the ICCPR reflect customary international law. See Henkin 1995.

7

Ibid.

8

The delineation of civil and political rights as “first generation human rights” has become standard terminology. See for example, Encyclopædia Britannica 2007; Ishay 2004: 3.

9

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Infused with Enlightenment notions of individualism and laissez-faire, this first generation of rights with their focus on the rights of the individual vis-à-vis political authority has come largely to be thought of as a set of “negative rights,” or rights that require government to abstain from denigrating (rather than requiring governments to intervene on behalf of) human dignity.

In large part, the emphasis on “negative freedoms” can be seen in the ICCPR’s Part III, which contains the treaty’s substantive obligations.10 Individuals have a right to their lives (Article 6), to be free from torture or degrading treatment (Article 7), from slavery or servitude (Article 8), a right to liberty and security of person (Article 9), the right to free movement (Article 12), to a fair trial (Article 14), freedom of religion and thought (Articles 18 and 19), peaceful assembly and free association (Articles 21 and 22). Rights of political participation are

guaranteed in Article 25. Equality before the law and minority rights are protected in Articles 26 and 27. But the treaty suggests positive rights of individuals as well. “Each state Party to the present convention,” according to Article 2(1), “undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present convention, without distinctions of any kind…” The treaty thus contains an affirmative obligation of states to organize civil and political life in ways that make the enjoyment of the rights

contained in the treaty possible.

The drafters of the treaty did not, however, envisage that these rights would be absolute; both the ICCPR11 and the Universal Declaration12 recognize that these rights may need to be limited when necessary to protect certain public interests.13 Many states reinforce and specify their rights of derogation through the use of reservations.14 Some – China with respect to freedom of religion is an outstanding example – provide for the civil freedoms contained in the ICCPR in their domestic law, but then take back the guarantee with domestic derogations that are much broader than the ICCPR itself allows.15 Many civil rights – citizens’ rights vis-à-vis the state – raise culturally sensitive controversies about the proper relationships between the

10

The text of the ICCPR can be accessed at http://www1.umn.edu/humanrts/instree/b3ccpr.htm (accessed 15 July 2003). 11 ICCPR, Article 4. 12 UDHR, Article 29(2). 13

In 1985, The Economic and Social Council negotiated a set of principles defining the conditions onder which derogation of ICCPR treaty obligations are in fact allowed. See United Nations, Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4, Annex (1985);

http://www1.umn.edu/humanrts/instree/siracusaprinciples.html.

14

The North African countries tend to make “states of emergency claims” for purposes of derogation; see Allain and O'Shea 2002: 90.

15

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individual, society, and the state.16 Ideological differences drove East and West to spar over civil rights during the Cold War. Today, civil rights are among those most likely to be dismissed as “western.”

In order to facilitate enforcement of these obligations, the ICCPR established the Human Rights Committee (Article 28),17 whose main purpose is to enhance the mechanisms of

accountability through its authority to monitor and receive state reports that are due on a regular basis. The Human Rights Committee is also empowered by the convention to consider

complaints of one state against another (Article 41), although this process has never been used. The Committee is also empowered, through the first Optional Protocol, to consider individual complaints against one’s own government.18 Although the Human Rights Committee was established expressly as a committee of experts rather than a court, analysis of its recent practice reveals that it is becoming increasingly "court-like."19

The ICCPR is not the only treaty to have addressed civil and political rights, but it is certainly the most central. Many of these rights have also been developed at the regional level, and in Europe with accompanying institutions with real enforcement power. The first 18 Articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) anticipates the civil and political rights covered by the ICCPR, and Section II establishes a regional court to assure enforcement.20 All of the first generation civil rights covered in the ICCPR are also detailed in the American Convention on Human Rights, book-ended by guarantees of juridical personhood and judicial protection of the rights contained in the treaty.21 The African Charter on Human and Peoples’ Rights (1981) contains in a more limited and contingent form some of the civil rights found in the ICCPR, including liberty and security of person, a right to a trial, freedom of conscience, free practice of religion, the right to disseminate

16

The “Asian values” debate is pertinent in this regard. On the idea that the global civil rights regime may not be compatible with Southeast Asian notions of statehood see Mohamad 2002.

17

Forsythe, for example prefers to think of the activities of the Human Rights Committee as “socialization” rather than enforcement Forsythe 1985.

18

For a legal analysis of the individual right of petition before the Human Rights Committee see De Zayas, Moller, and Opsahl 1985; Ghandhi 1986; Heffernan 1997; McGoldrick 1991; Myullerson 1992. For an example of a Human Rights Committee communication process that had an impact on government practices in the case of New Zealand see De Zayas, Moller, and Opsahl 1985.

19

Helfer and Slaughter 1997. For a review of the literature on the effectiveness of the Human Rights Committee, see Donnelly 1998; Keith 1999.

20

Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, entered into force Sept. 3, 1953.

21

American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978. See the extensive list in Chapter II (Articles 3-25).

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one’s opinion, and free assembly and association.22 Practically the entire panoply of civil rights has been exported from the ICCPR to other international conventions aimed at protecting specific groups, including the Convention on the Elimination of all Forms of Racial Discrimination23 and the Convention on the Rights of the Child.24

II. Theoretical Argument: Compliance with the ICCPR

Why should governments comply with the treaties they ratify? The current state of the literature suggests that, especially in the human rights area, they largely do not. Human rights treaties are not likely to be enforced, according to a dominant view, and for this reason states are likely to ratify to enjoy the expressive benefits of doing so without concern that their legal commitment will be enforced.

The cynical view flows from an emphasis on international enforcement, but a neglect of domestic politics. While it may be true that international actors – and especially other states – have little incentive to enforce their peer’s human rights commitments in any serious and systematic ways, domestic actors have a clear stake in their enforcement. For the locals, their rights and freedoms are at stake. Thus we should expect that if international law with respect to human rights is to be enforced, the most consistent pressure to do so should emanate from domestic politics.25

There are a number of ways in which international human and civil rights treaties might be expected to influence domestic politics. Most obviously, most treaties are exogenous to the domestic legislative activities of most states. The question of their ratification and

implementation places an issue on the national agenda that might not have been there in the absence of the treaty adoption itself. Even if they are not especially controversial, the existence of a treaty raises the question of ratification, putting an item on the national legislative agenda that might not have been there otherwise. Treaties can therefore have policy effects without raising much controversy, largely through elite consensus in favor of ratification.

22

African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc.

CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986: See generally articles 6-14.

23

International Convention on the Elimination of All Forms of Racial Discrimination, G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force Jan. 4, 1969. See especially Article 5 (a-d).

24

Among other things, guaranteeing children a right to religious freedom and free conscience, peaceable assembly, and civil rights when accused of crimes (CRC, articles 14, 15 and 40 respectively).

25

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The more interesting cases, however, are those in which governments ratify an

international human rights agreement yet make no move to implement or to comply with it. Why should a ratified treaty make any difference in such cases? One reason is that treaties constitute law in many countries, and could strengthen civil rights litigation. Of course, for this mechanism to work, it is necessary that the courts in the country in question are sufficiently independent of the political powers that they can render an independent judgment with some probability of constraining political actors. Litigation in national courts is one of the best strategies available for creating home-grown pro-rights jurisprudence.26 Of course, the availability of treaty law certainly does not assure litigation will take place. Potential litigants must be aware – or come to be made aware – of their rights under international law (or under the implementing legislation it has inspired). A certain degree of “legal literacy” is required if individuals are to access the courts.27 Litigation is limited for a number of reasons,28 but cases involving international legal guarantees touching on civil rights seem to be on the rise in many places.29

Quite aside from litigation (or sometimes using it as part of a broader strategy), international legal agreements can be important aspects of domestic political mobilization to demand rights adherence from governments. Suppose that the probability that citizens will mobilize to demand a civil right depends on two factors: the value they place on that right and the likelihood that mobilization will be effective. These two factors represent the “expected value”

26

Osofsky 1997. On transnational public law litigation generally, see Koh 1991.

27

On this point see the work of Merry 2006.

28

Frymer 2003. pp. 486-488. On the potential for human rights litigation in the United States, see Tolley 1991. The point being that the potential exists, but it is relatively limited. Individuals’ access to courts varies greatly. The Supreme Court of India, for example has decided that cases can be taken upon behalf of those in poverty who are unable to file for themselves, and that such cases can be initiated simply by letter. See Ellmann 1998. p. 358.

29

Examples of litigation involving rights guaranteed by ratified treaties can be found in every region of the globe. Human rights litigation is burgeoning in some parts of the developing world, notably in Latin American countries with fairly recent histories of severe rights abuses. See Kim and Sikkink 2007. Several African countries have used international treaties to shape their own jurisprudence on civil and political rights. Namibian courts have referred to the ICCPR to provide guidance in the determination of national discrimination law. Tshosa 2001: 110. Botswanian courts have made reference to international instruments to determine reasonable criteria for a fair trial. Tshosa 2001: 172. The Russian Court has used international law to support its decisions in criminal justice cases as well, instructing the rest of the judiciary to apply the ICCPR over domestic legislation in cases involving petitions about the lawfulness of detentions. Danilenko and Burnham 2000. p. 43. In Japan women have used the courts to realize their right not to be discriminated against in employment, while in Israel, the Supreme Court has ruled that certain interrogation practices do, in fact, constitute torture as understood by the Committee Against Torture. These and other examples of successful litigation based on human rights treaties are collected by a variety of NGOs. See for example http://madre.org/articles/int/hrconv.html] Cases filed in the Indian Supreme Court in 1994 “asked the Court to order the government to show what steps were being taken to end discrimination in the personal laws consistent with the principles of CEDAW” thus effectively forcing the government to articulate the extent of its compliance with its 1993 ratification commitment. Merry 2006: 167.

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of mobilization. The expected value of mobilization varies across countries. In general, the value a citizen is likely to place on a treaty-protected civil right will be higher in non-democratic countries where the marginal value of an additional right is likely to be much higher than in a democracy, where access to a large number of rights is already secure. But at the same time, the likelihood that mobilization will succeed is higher in a democracy, where more responsive government is the norm. When we combine these two factors, as illustrated in Figure 1a, it becomes clear that the expected value of mobilization is rather small in both stable democracies and stable autocracies, but significant in countries in the middle – that have some possibility of non-autocratic governance yet do not have a broad and secure panoply of civil rights. In these countries, citizens have both the motive and the means to organize to demand respect for civil rights from their governments.

[FIGURE 1A ABOUT HERE]

Ratification of the “International Bill of Rights” influences citizens’ mobilization calculations in two ways. On the one hand, in non-democracies, ratification injects a new model of rights into the domestic discourse, potentially altering expectations of domestic groups, and encouraging them to imagine themselves as entitled to forms of official respect they may never have dreamt themselves entitled to. The model has all the more power, because the government has actively assented to the rights in question, imbuing them with a legitimacy they would not have in the absence of ratification. As constructivist theory suggests, there are good reasons to attribute an educative function to international legal instruments, especially once they have been formally accepted by government authorities. This educative function of international treaties ought to be weak or even absent in democracies, where many if not most of the civil rights in question are already part of political life.

On the other hand, international treaties are much more likely to enhance the probability of success in making civil rights demands in a democracy than in a non-democracy. Democratic governments are much more constrained by constitutional and statutory law; they are more likely to have independent courts, and to be composed of a citizenry that is quite legally literate. A ratified treaty will therefore have strategic legal value in a democracy that it is likely to lack in an autocracy. Citizens that are armed with “new law” are more likely to be more empowered in a system based on the rule of law than one based on more arbitrary and unconstrained political authority.

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[FIGURE 1B ABOUT HERE]

Thinking of these factors in combination leads to the central expectation of this paper: Where we are likely to see the most significant treaty effects – at least with respect to civil and political rights – is in the less stable, transitioning “middle ground” regimes. In these countries, individuals have both the motive and the means realistically to press their governments to take international human rights treaties seriously. Treaties can still play a legitimating function, reassuring a nascent coalition that their demands are legitimate and solidifying their identity as individuals with a moral and legal case to make vis-à-vis their government. Mobilizing is meaningful, even exciting; but not nearly as dangerous as in stable autocracies that tolerate no opposition. Treaties create additional political resources for pro-rights coalitions under these circumstances; they resonate well with an embryonic rule of law culture, and gather support from groups that not only believe in the specific rights at stake, but also believe they must take a stand on rule-governed political behavioral in general. The courts may be somewhat corrupt,

inexperienced, or even incompetent, but they are not nearly as likely to execute the government’s will as loyally as in a stable autocracy. International human rights treaties may be in their most fertile soil under such circumstances. As we shall see, the consequences of ratification for rights compliance in these cases can be profound.

Is the claim that treaty ratification contributes to compliance via enhanced political mobilization plausible? Table 1 addresses this issue. It shows that ratification gives rise to a significant increase in local memberships in international non-governmental organizations one to four years after ratification. Ratification appears to stimulate membership in civil society organizations, even when we control for external aid, population growth, wealth, and a time trend. It is therefore at least plausible that the treaty effects discussed above have much to do with the organization of civil society demands for compliance. This interpretation is consistent with a host of case studies that describe treaties as an important tool in drawing attention to the civil rights violations of governments.30

[TABLE 1 ABOUT HERE]

In the following sections, I test for the impact of ratification of the ICCPR on three clusters of civil rights: freedom of religion, fair trials, and the right to life, as reflected in abolition

30

For a discussion of how NGOs such as HRW and ACLU use the ICCPR to criticize, e.g., the United States, see Shapiro 1993.

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of the death penalty. I have chosen these areas because they are a fairly hard test for the impact of international legal obligations on practices. Specifically, I have decided to avoid those aspects of the ICCPR that are practically synonymous with democracy itself.31 In this way, I am trying to separate treaty effects on civil rights from the more general waves of democratization that have swept most regions of the world over the course of the latter half of the 20th century. The rights I choose to analyze are civil rights over which even democratic countries could plausibly have quite different practices and place quite different priorities. While rightly considered an

“enlightenment right” the freedom to practice one’s own religion is not quintessentially an aspect of democratization, and as we will see does not vary directly with regime type. A similar point applies to the quality of criminal justice. Since most citizens will never brush up against the criminal justice system, this is an area that could easily lag behind the broader processes of “democratic development.” And yet how a society deals with persons accused and convicted of serious crimes is a central civil rights issue.

III. Religious Freedom

The freedom to believe in and to practice the religion of one’s choice is a right with a long historical pedigree. Confessional differences were one of the earliest areas of social

difference among groups – a signal distinction that was quite salient until well into the eighteenth century.32 Protection for religious minorities was an important part of the Treaty of Westphalia,33 which, however, was by no stretch of the imagination a human rights document. Still, it is probably correct to think of religious rights as among the first, if not the first, set of rights accorded first to groups and later to individuals through international legal agreements.34

Governments have been concerned about the practice and protection of religion over the centuries because it has implications for their political legitimacy and authority. As John Hall has written, “Religions deal in ultimate meanings that bear a claim to exceed merely secular

authority. Thus, they remain a potent basis for contesting political legitimacy both within and beyond nation-states…”35 Governments have oftentimes feared that their authority could be

31

Article 25 of the ICCPR for example provides a right “To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;…” Such a right is so intimately connected – practically by definition – with regime type that it makes little sense to test as an empirical outcome of a treaty commitment. 32 Hannum 1991. 33 Ibid. 34

Humphrey 1984: 176; Partsch 1981: 209; Sieghart 1983.

35

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undermined by spiritual claims that transcend their temporal and territorial domain. Sociologists have discovered that political movements with religious roots typically “…originate in social strata that are negatively privileged politically and economically, or socially ascendant but blocked from power."36 Religion can and historically has served to mobilize political opposition in ways that dominant social classes or regimes view as threatening. Religious fervor and

religious intolerance have historically been prime ingredients in episodes and even eras of violent conflict.37 More mundanely, governments might choose to repress even relatively powerless

religious movements or individuals, in order to “reinforce general norms of cultural

conformity."38 Often restrictions on religious organizations and practices involve calculated efforts to balance political control with personal freedom. The Communist Party of China’s effort carefully to control certain religious practices while accepting others can be viewed as an effort to grant limited personal autonomy while trying to guard the political legitimacy of the regime,39 which is typically justified in the name of maintaining “social harmony.”40

Religion has always been a social force with which governments have had to reckon. Recent surges in various indicators of religious fervor have made the issue more pertinent than ever. Throughout the former Soviet Union in the past 30 years with approximately 100 million people joined religious groups for the first time.41 According to Ronald Inglehart, scholar and Chairman of the World Values Survey, “…unequivocally... there are more people alive today with traditional religious beliefs than ever before in history, and they're [sic.] a larger percentage of the world's population than they were 20 years ago.”42

Modern states have come up with legal mechanisms for handling issues of religious freedom and its limits. Western perspectives typically assume that religious tolerance is the basis for peace;43 the separation of church and state is an oft advocated formulation. Today, as many

as one-third of the nations of the world include formal guarantees of church-state separation in their constitutions.44 Even the constitutions of communist countries guaranteed freedom of

36

Ibid.

37

Some studies suggest that religious nationalism has had an especially strong association with violent conflict since the 1980s. See Fox 2004.

38 Hall 2003. 39 Potter 2003. 40 Kolodner 1994: 466. 41

Froese 2004: 57. Froese notes that this has lead not to a proliferation of religious faiths but to the unprecedented growth in religious monopolies associated with orthodox Christianity and Islam.

42

Ronald Ingelhart, chairman. “Is there a Global Resurgence of Religion?” speech before the National Press Club, May 8 2006. Transcript available at https://pewforum.org/events/index.php?EventID=116.

43

See studies by the United States Institute of Peace, discussed in Little 1996: 75.

44

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religious belief and practice, as long as religions were not “misused” politically for opposing the (socialist) constitution.45

Religious Freedom and International Law

International law has had several responses to the issue of religious freedom. During the interwar years, Article 22 on the League of Nations Covenant imposed upon Mandatory Powers the duty to guarantee freedom of conscience and religion.46 The Universal Declaration, though not legally binding, stipulates in Article 18 that: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”47

The ICCPR contains a number of articles that obligate state parties to respect the right of individuals to believe and practice their own religion.48 Article 2 prohibits discrimination of the rights enumerated in the Covenant on the basis of, among other things, religion, and Article 24 extends protection against discrimination explicitly to children.49 Article 20(2) calls on states parties to prohibit “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence…”50 The most important guarantee of religious freedom is spelled out in Article 18, which provides that “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” 51 According to Article 4(2), Article 18 is one of the provisions of the treaty that is non-derogable, even in a declared national emergency.52 Interestingly, the ICCPR’s Article 18 does not reiterate

45

Riis 1999: 24. Frequently, of course, a state seeking to suppress religious freedoms characterizes the activities of religious groups and leaders as impermissible political action or subversion. See Ribeiro 1987.

46

Lerner 1996: 84.

47

Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948).

48

Generally, see the discussion of ICCPR provisions in Lerner 2006; Tahzib 1996: 82. Religious toleration was excluded from earlier binding accords, such as the Convention on the Elimination of Racial Discrimination, because of opposition from the socialist countries at the time. See Taylor 2005: 9.

49

ICCPR, Article 2, para. 1; Article 24 para 1; see also Article 26.

50

ICCPR Article, para. 2.

51

ICCPR Article 18, para. 1. The right to practice one’s own religion is also guaranteed in Article 27. There are permissible limitations on the right to “manifest” ones religious beliefs. See discussion in Taylor 2005: 292-338.

52

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the UDHR’s language specifying a right to change religions – a provision that was opposed by Saudi Arabia and other conservative Muslim countries.53

Several regional agreements also contain provisions about religious freedom.54 Article 9 of the 1950 European Convention almost replicates Art 18 para 3 of the ICCPR. The

Organization on Security and Cooperation in Europe’s Principle VII of the Helsinki Final Act refers to freedom of thought, conscience, religion and belief for all without distinction as to race, sex, language or religion.55 The 1960 American Convention on Human Rights provides for freedom of conscience and religion (Article 12), and proclaims the right to maintain and to change one's religious beliefs.56 Article 8 of the African Charter guarantees free conscience and the free practice of religion.57

Islamic agreements referring to religious freedom are much more circumspect. While agreeing to the principle of freely chosen religious commitments, they evince a real concern with conversion from Islam to other belief systems. The Cairo Declaration on Human Rights (1990) prohibits "any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism" (Article 10).58 Article 22 allows freedom of expression as long as it is exercised in a manner that is not contrary to the principles of Shari'a.59 Religious freedom is sharply curtailed in certain Islamic theologies, according to some scholars,

53

Tahzib 1996: 85. "The Saudi Arabian representative argued that explicit recognition of freedom to change one's religion or belief would foster discrimination in favour of religions possessing highly organized proselytizing institutions, particularly in the case of a state with a proselytizing state religion." (p. 85). To quote the Saudi delegate, "Men could in fact be induced to change their religion not only for perfectly legitimate intellectual or moral reasons, but also through weakness or credulity." UN Doc A/C.3/SR.1021, para 27. See also Taylor 2005: 29-34.

54

These are discussed in Lerner 2000: 40-50.

55

The Final Act of the Conference on Security and Cooperation in Europe, Aug. 1, 1975, 14 I.L.M. 1292 (Helsinki Declaration); text athttp://www1.umn.edu/humanrts/osce/basics/finact75.htm. Furthermore, "The monitoring of human rights by the Council of Europe, the OSCE, and the EU has produced significant case law with respect to religious rights. Ibid.: 42. For a comparison of international and European law on religious freedoms see generally Taylor 2005.

56

Statute of the Inter-American Commission on Human Rights, O.A.S. Res. 447 (IX-0/79), O.A.S. Off. Rec. OEA/Ser.P/IX.0.2/80, Vol. 1 at 88, Annual Report of the Inter-American Commission on Human Rights, OEA/Ser.L/V/11.50 doc.13 rev. 1 at 10 (1980), text at

http://www1.umn.edu/humanrts/oasinstr/zoas4cms.htm.

57

African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986; excerpted text at

http://www1.umn.edu/humanrts/instree/z1afchar.htm.

58

Cairo Declaration on Human Rights in Islam,Aug. 5, 1990, U.N. GAOR, World Conf. on Hum. Rts., 4th Sess., Agenda Item 5, U.N. Doc.

A/CONF.157/PC/62/Add.18 (1993) [English translation]; Article 10. Text at

http://www1.umn.edu/humanrts/instree/cairodeclaration.html.

59

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by the view that conversion from Islam to another religion is tantamount to treason, and potentially punishable by death.60

More than a decade after the ICCPR opened for signature, the General Assembly passed a (non-binding) resolution that filled out some of the details of the religious clauses of the ICCPR. In 1981, the UNGA adopted by consensus the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Its main purpose is to give more concrete content to the general norms of the Universal Declaration and the Covenant on Civil and Political Rights.61 UN-based law on religious freedom is also reiterated in the Convention on the Rights of the Child, which acknowledges children’s “freedom to manifest [their] religion or religious beliefs" (Article 14), although this is the most reserved against provision of that convention.62

Despite these international legal obligations, it is not at all obvious that governments have taken practical measures to improve religious freedom within their jurisdictions. In 1986, a study of UN members’ constitutions found that most had in fact provided for the protection of religious freedoms in their national constitutions and guarded against religious discrimination in their penal codes – though very few countries were judged to have implemented these measures in a

satisfactory way in practice.63 State control over religious groups in Communist China has long been notoriously tight and treatment of many religious groups especially harsh.64 Some countries, such as Russia, have ratified the ICCPR but have also recently implemented domestic laws on religious freedom that are noticeably more restrictive.65 In fact, as Peter Beyer has noted, “…maintenance of some kind of religious hegemony is the rule all across global society… unfettered freedom of religion or genuine religious pluralization is correspondingly rare, if it exists anywhere.”66 Even liberal democracies such as Germany and France have taken actions that to some extent discriminate against or suppress religious groups and practices.67 Richard Lillich has concluded that “…one is forced to acknowledge that the right of religious freedom is

60

Talbi 1986: 182.

61

Article 1 affirms the right to freedom of thought, conscience and belief, and the right to manifest one's religion or belief. Article 2 prohibits discrimination on the basis of religion or belief. Neither provision defines "religion" or "belief," nor are these terms defined elsewhere in the Declaration. See the discussion in Sullivan 1988. See also Lerner 2000: 20-28; Odio Benito 1989: 48-50.

62

For a discussion of religious rights of children, see Brems 2006.

63

Odio Benito 1989: 22-30.

64

Evans 2002.

65

Durham and Homer 1998. Some scholars compare the restrictive 1997 law as a return to religious restrictions during the Stalin era. See Froese 2004: 69.

66

Beyer 2003.

67

On Germany, see Editorial 1998.; On Frances “Anti-Sect” Bill, see http://www.cesnur.org/testi/fr2K_july4.htm.

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one of the weakest – from the point of view of its recognition and its enforcement – of all the rights contained in articles 3-18 of the Universal Declaration.”68 Does it matter for the enjoyment of religious freedom that governments have committed themselves to the ICCPR?

Data and Methods

While no society can be characterized by the perfectly free practice of religious beliefs – even the hyperliberal United States curtails religious practices considered immoral or a public danger – it is reasonable to expect that governments who have committed themselves to the International Covenant on Civil and Political Rights to move in the direction of a relatively more liberal approach to religious belief and practice. In order to test this proposition, it is necessary to measure the relative liberality of official practices. Data collected by Cingranelli and Richards provides one such measure. Their religious freedom indicator measures “the extent to which the freedom of citizens to exercise and practice their religious beliefs is subject to actual government restrictions. Citizens should be able to freely practice their religion and proselytize (attempt to convert) other citizens to their religion as long as such attempts are done in a non-coercive, peaceful manner.”69 This variable is dichotomous; that is, countries are coded as either restrictive or free. Governmental practices that count as restrictions include prohibitions on proselytizing, prohibitions on clergy’s political participation; the arrest, detention or violence toward religious officials, citizen conversions forced by government officials, citizen arrests, harassment and/or intimidation for religious beliefs and practices, and so forth.

[FIGURE 2 ABOUT HERE]

The worldwide average relationship between this measure and ratification of the ICCPR is depicted in Figure 2. There appears to be no clear relationship between ICCPR ratification, which has trended upward over time, and this average measure of religious freedom worldwide. Religious freedom worldwide seems to take a dive between 1985 and 1987, and then improves slightly in the earliest post-Cold War years, only to drift downward over the course of the 1990s and early 2000s. Obviously more than international legal developments are at play here. But the question is, given the broad range of pressures on governments to accommodate or to repress free religious practices, how, if at all, has ratification of the main binding global instrument – the ICCPR – influenced actual practices?

68

Lillich 1984: 60.

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In order to address this question, I use a two-stage regression model in which ratification in the region, common law legal system, and ratification procedures are used as instruments for ratification.70 Country fixed effects are included as controls but not reported. A lagged dependent variable is also included, so that we are in effect modeling improvements in religious freedom from year to year.

A number of control variables are included so as to reduce the risk of drawing inappropriate inferences about ICCPR commitment. An indicator is included to capture the extent to which the state has a constitutionally established relationship with an official religious organization. I distinguish those states that established an official religion between 1970 and 2000, from those that disestablished an official religion in the same time period. My expectation would be that establishment would be associated with more governmental interference in free religious practices, which disestablishment would be associated with a liberalizing trend. I also distinguish states that were stable with respect to the establishment of state religion between 1970 and 2000, although I have no clear expectation for trends in their repression. After all, there is no reason to expect religious repression/freedom in a country to change much where relations between church and state are fairly stable.71

One of the most important conditions for which to control is the extent of societal homogeneity with respect to religious culture. In societies characterized by a high degree of homogeneity, state repression will hardly be necessary to achieve a consensus on basic value and social issues. But where many religious groups vie for social or cultural space, politicians may decide to use repression to advantage their religious supporters and quash culturally based opposition. The greater the degree of religious fractionalization, the greater we might expect religious repression to be.

I also control for the dominant religion within each country. Certainly, no particular religious orientation has a monopoly on repressive tactics, whether for political or for spiritual reasons. Yet it remains true that certain of the world’s major religions are “universalistic” in orientation; in Ole Riis’s words, they “claim to contain the whole spiritual truth, [while] particularistic religions have more specific aims and only claim partial access to that truth.” 72 Riis goes on to contend that “While the former confront the individual with a fundamental choice and demand total commitment from their members, the latter are less demanding and may even

70

For a justification of these as good instruments – they explain ratification but do not directly explain the rights outomes in question – see Simmons forthcoming: ch. 3.

71

Ironically, the motive behind establishment of a particular state religion usually is to strengthen that religion, but the effects are ultimately to undermine the vitality of the established religion. Establishing a state religion tends to reduce actual religious attendance. See North and Gwin 2004.

72

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be combined in functional mixtures, which, for the universal religions, would be perceived as eclecticism, syncretism and heresy. As a consequence, religious pluralism seems to be less problematic when particularistic religions are involved."73 For these reasons, I include indicators for predominantly Protestant, Catholic and Islamic countries. If Riis’s observation can be

generalized, we might expect countries dominated by these faiths to be relatively intolerant of, and possibly even repressive toward, religious minorities.

External pressures could also account for some episodes of liberalization toward religious belief and practice. Some of the wealthiest countries in the world are the most democratic and among the staunchest supports of rights world wide. Some of these governments are likely to use their aid strategically to oppose minority repression of all kinds; religious freedom would be only one among many of these governments’ goals. In addition, foreign aid in some countries – the United States in particular – may have been influenced by religious Christians intent on punishing governments that take a harsh stance against Christian churches and missionaries.74 Aid given by external actors could easily be conditioned – whether implicitly or explicitly – by demands that recipients honor the religious rights of their locals (and of foreign missionaries). The more important such aid is as a proportion of GDP, the more we might expect an improvement in religious freedom, quite independent of the demands associated with treaty ratification.

Findings: ICCPR Ratification and Religious Freedom

The results of these analyses are displayed in Table 2. One thing is quite clear: there are many factors that impact government policies with respect to religious freedom than the

ratification of the ICCPR. Models 1-3 indicate that ratification is positively associated with minimal governmental restrictions on religious freedoms, although the result is statistically significant on average only five years after ratification. Models 3-5 run a similar model on subsets of countries: transitioning countries, stable democracies (since World War II), and stable autocracies. These tests show that the transitioning group – countries that have at some point since World War II have experienced a modicum of democratic governance – account for the most convincing share of the effects of ICCPR ratification. According to Model 4, we can be fairly sure that among transitioning countries, ratification of the ICCPR is associated with an 11 percent increase in the average religious freedom score. If anything, ICCPR ratification is associated with a slight deterioration in freedom in stable democracies (p=.165, below standard levels of statistical significance), while in stable autocracies, the standard error is far too high to

73

Ibid.: 23-24.

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draw any inferences at all. Ratification of the ICCPR is most convincingly associated with improvements in religious freedoms in countries in transition. These results are robust to the inclusion of country and year fixed effects, a year trend, the actual degree of democracy in each year, and average religious freedom in the region.75

[TABLE 2 ABOUT HERE]

Of course, much else explains governments’ efforts to control religious beliefs and practices in their jurisdictions. The changing relationship between church and state over time appears to be quite important, but it varies significantly across subgroups by regime type. Establishment and disestablishment were associated with greater governmental restrictions on religion in general, but not within stable democracies, where these changes seem to make no systematic difference to religious freedoms. Generally, in countries with a high degree of religious fractionalization, there tends to be much more official state oppression than in more religiously homogenous societies, but the stable autocracies account for most of the repression in this case. For an autocrat, religious opposition might well represent a perceived political threat, “justifying” a crack down on the religious followers of political rivals.

Foreign aid also seems to work, as expected: as aid increases as a proportion of the recipient’s GDP, governments tend to remove restrictions and take a more liberal approach to religious freedoms. This result is especially strong for autocracies, though weak to non-existent within stable democracies. A strong possibility is that aid is given selectively, that is, to countries that already have fairly strong respect for religious freedoms. It could also indicate a form of soft conditionality if aid providers extend assistance on the understanding that rights practices with respect to religious freedoms are expected to improve. Surprisingly, a country’s level of development seems to be negatively associated with religious freedoms: controlling for

differences between countries, and focusing only effects within them, greater wealth per capita is associated with more governmental interference with religious freedom.

Finally a word about religious freedoms across the major religious cultures. Because they span many nations, I have tested for differences in practices with respect to religious freedom for predominantly Protestant, Catholic, and Islamic nations. No predominantly Islamic countries were among the stable democracies, but neither branch of Christianity had any

significant impact on religious freedoms in stable democracies. Predominant religious culture in the transitioning countries and stable autocracies display contrasting results, with Islam associated

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with greater religious freedoms among transitioning countries and Christianity associated with greater religious freedom among stable tyrants.

For our purposes, the major result is the weak but noticeable influence of ICCPR within five years of ratification for all regime types, with a clear concentration of these positive effects within countries that have had at least some post war experience with a moderate level of democratic governance. This is consistent with a theory that predicts the strongest treaty effects iin countries in which individuals and groups have both the motive and the means to demand treaty adherence. It is also consistent with anecdotal evidence of the weight that at least some religious groups attach to ratification of the ICCPR as a way to enhance their ability to operate freely in many locations throughout the world.76 Indeed, the ability to organize and to draw from the strength of faith-based communities with dense social networks may be one of the key reasons the ICCPR’s religious guarantees are more difficult for governments to ignore than other aspects of the treaty. A fairly sharp comparison can be drawn with civil rights touching on criminal justice, which is explored in the following sections.

IV. Fair Trials

The right to a fair trial has deep historical roots that extend back as far as the Magna Carta (1215).77 The idea of that document – and many to follow with successively greater elaboration and expansion – was to prevent the arbitrary exercise of sovereign power to arrest, detain and convict individuals for various infractions and misdeeds without basic provisions for the due processes of law.

So why do some states fail to provide their populace access to a fair trial? One cluster of explanations resides in the generally repressive nature of governance on which some regimes rely. Denying access to justice for political opponents to common criminals is one way for an oppressive state to maintain its arbitrary control over social and political developments. Demands

76

Among US religious and church organizations, the more liberal – often those whose organizational provenance can be traced to the anti-war movement of the Vietnam era – tend to support the ratification of the ICCPR and other covenants, while more conservative religious organizations such as the National Association of Evangelicals, are distinctly cool to the UN approach to rights. See the discussion in Livezey 1989. For more on the follow-up of religious as well as secular NGOs, see Tahzib 1996: 245. and

generally discussion on pp. 223-245. See also Roan 1996.

77

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” Magna Carta, Article 39. Text can be accessed at http://www.fordham.edu/halsall/source/magnacarta.html. (Accessed September 27, 2007.)

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for fair treatment before the law have historically been associated with a break with arbitrary or authoritarian rule. Fair trials were central among the liberties that distinguished the colonial rights of Englishmen in the New World on the eve of the American Revolution.78 Fair trials were also a centerpiece of the democratic transition in former Communist countries, such as the Czech Republic, Hungary, Poland, Lithuania and Romania, and made their way prominently in to the new post-Communist constitutions in these state.79 A right to a fair trial was not included in the South African constitution until apartheid was brought down in 1994; such a right as existed in common law in that country could be overridden legislatively according to principles of

parliamentary sovereignty.80 The concept of popular sovereignty historically has fueled demands for legal reforms that reflect the basic civil right to due process of law for individuals accused of crimes.81

There may be other reasons for weak due process in practice. Some observers associate a breakdown in the fair delivery of criminal justice with a broad incapacity of organs of justice more generally. In parts of Asia, fair trials are seen as a symptomatic of the widespread demise of judicial independence more generally.82 In particular, some countries are plagued with judicial incompetence and poor police training.83 The provision of a fair trial may be limited not only for political purposes of despotic states, but can also flow from bureaucratic incapacities that stem from broader resource deficiencies.

Fair Trials in International Law

The Universal Declaration of Human Rights was the first modern multilateral document to articulate a right to a fair trial. Fair trials were somewhat less controversial than the provision of religious freedom, though debates did ensue about the exact parameters of this guarantee. The United States was eager to articulate post-war principles of civil and political rights, and provided the first proposal containing some of the substantive fair trial provisions for the UDHR.84 The United Kingdom drafted provisions for protections from arbitrary arrest.85 Delegations from Cuba, Chile, and Mexico were also especially active in the drafting of fair trial provisions, and

78

See Bodenhamer 1992: 19.

79

See articles by Hollander, Vasilescu and Trocsanyi, Staciokas, Oniszczuk and Horvath in Council of Europe 2000. 80 Skeen 2000: 110. 81 Sung 2006. 82

See the rambling and disorganized discussion in Asian Human Rights Commission 2000.

83

As an example, see the statistics regarding Nepal cited in Sangroula 2000.

84

These provisions, though developed specifically for the UDHR, were eventually adopted in the ICCPR’s Article 14, the development of which the US was decidedly cool. See Weissbrodt 2001: 44.

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were insistent on their inclusion. As a result of these efforts, fair trials feature prominently in the UDHR: Article 8 provides for remedies for violations of the right to a fair trial; Article 9 deals with arbitrary arrest; Article 10 expresses the basic right of the individual to a fair trial in both civil and criminal proceedings; and Article 11 refers to a presumption of innocence and the prohibition of ex post facto laws and penalties.86

The ICCPR was negotiated concurrently with the Universal Declaration, and the UDHR’s articles 8-11 were made legally binding in Articles 14 and 15 of the Covenant. “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law,” according to Article 14.87 Article 15 guarantees a presumption of innocence and prohibition of ex post facto laws, and is one of the seven articles specified as non-derogable in Article 4.88 The ICCPR also addresses some events leading up to and following the trial proper, including arrest, detention, interrogation, and punishment.89 According to the Human Rights Committee, the object and purpose of these provisions, and especially Articles 14 and 15, is to ensure that no one is subject to arbitrary prosecution, conviction, or punishment.90

Fair trials are also mentioned in several regional human rights agreements. The Americas were among the earliest to institutionalize a right to a fair trial on a regional basis. The 1948 American Declaration of the Rights and Duties of Man mentions a fundamental right to access the courts “to ensure respect for his legal rights”91 while the American Convention on Human Rights provides for a liberal list of “minimal guarantees” for “[e]very person accused of a criminal offense…” 92 Article 6 of the 1953 European Convention for the Protection of Human

86

See UDHR, articles 8-11.

87

Article 14. On the origins and drafting history of Article 14 see Weissbrodt and Hallendorff 1999.

88

See the discussion in Weissbrodt 2001: 93-110.

89

See Articles 4, 6-11, 17 and 26

90

Accordingly, they have interpreted the provisions as applying both to general courts and to specialized courts (e.g., military tribunals) that try civilians, and view fair trial provisions as pertaining to violations made at any stage of the proceedings. Human Rights Committee General Comment 13 (21) (adopted in 1984), UN doc HRI/GEN/1/Rev.2 (1996). Text located at

http://www1.umn.edu/humanrts/gencomm/hrcom13.htm. For a discussion of the various fair trial provisions of the ICCPR, see De Zayas 1997; Jayawickrama 1997; van Dijk 1983.

91

American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, adopted by the Ninth International Conference of American States (1948), Article XVIII. Text at

http://www1.umn.edu/humanrts/oasinstr/zoas2dec.htm.

92

American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into forceJuly 18, 1978, Article 8, para. 1 and 2. Text available at

http://www1.umn.edu/humanrts/oasinstr/zoas3con.htm. For a discussion of cases heard by the Inter-American Commission on Human Rights and the Interamerican Court of Human Rights see Augusto Cancado 1997; Kokott 1997.

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Rights and Fundamental Freedoms (as amended), which preceded, the ICCPR, specifies a right to a fair trial, and describes this right in much the same way as does the ICCPR.93 The League of Arab States’ Charter on Human Rights (as revised, 2004) also contains guarantees with respect to fair trials.94 Article 7 of the African Charter includes rights to be presumed innocent, to defense and counsel of accused’s choice, the right to an impartial trial within a reasonable period of time and protection from ex post laws, but does not contain many of the other components of a fair trial specified in the UDHR and the ICCPR.95 The right to a fair trial is also addressed under international humanitarian law, in particular the Geneva Conventions (1949) and their 1977 Protocols.96

The ICCPR remains the most important universal treaty to guarantee a right to a fair trial. What has the ratification of the ICCPR contributed to the actual provision of a fair approach to criminal justice? The strategy for answering this question is discussed in the following section.

Data and Methods

If the ICCPR has an influence on the civil rights of accused persons, then we should see actual practices guaranteeing fairness to improve among ratifiers. Oona Hathaway has developed a sophisticated measure of fair trials, using international legal texts – primarily the ICCPR – as her guide and State Department reports for the raw material from which her index is coded.97 The index considers the extent to which trials are carried out by independent and impartial tribunals; whether an accused person has a right to counsel (and if necessary, an interpreter) and to present a defense; whether there is a presumption of innocence; the trial is held publicly, in a timely

fashion and with a right to appeal. In addition, she coded for prohibitions on ex post facto laws and the right to have charges presented with prior notice.98 This index captures well the international norms embodied in the ICCPR.

Figure 3 illustrates the world-wide average of the Fair Trials scale each year from 1982 to 2002. We only have data since 1982, but the trends are toward a slight deterioration in the mid

93

Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, entered into forceSept. 3, 1953, as amended by Protocols Nos 3, 5, 8, and 11 which entered into force on 21 September 1970, 20 December 1971, 1 January 1990, and 1 November 1998 respectively. See

http://www1.umn.edu/humanrts/instree/z17euroco.html. See discussion in Leigh 1997; Matscher 2000.

94

See articles 13 (paras. 1 and 2) 14 (5),16, 17, and 20(2). League of Arab States, Revised Arab Charter on Human Rights, May 22, 2004. Text available athttp://www1.umn.edu/humanrts/instree/loas2005.html.

95

African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc.

CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986. See discussion in Badawi El-Sheikh 1997: 328.

96

Swinarski 1997.

97

On the quality of state department reports see De Neufville 1986.

98

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1980s and again in the late 1990s. On the face of it, it would appear there is very little

relationship between average global ratification of the ICCPR and the average on this scale, in contrast to the broader civil liberties measure examined above. Of course, many factors influence the will and capacity to provide individuals accused of a crime with a fair trial. What if anything does ratification contribute?

[FIGURE 3 ABOUT HERE]

In order to answer this question, it is again important to construct a model that accounts for ratification endogeneity, constant characteristics of countries, shocks specific to particular years, and a host of alternative explanations. The models reported in Table 3 pool countries over time and employ two-stage least squares, and endogenize the decision to ratify the ICCPR as described above.99 They all contain country fixed effects, so that constant characteristics of particular countries do not drive results; as well as year fixed effects, to control for the possibility that some common external shock jolts all countries to alter their policies at given points in time. To account for policy inertia, the dependent variable lagged three years is included, as are average regional trial practices to account for the possibility of socialization or mimicry toward regional norms. Since we do not want to confuse the effects of ICCPR ratification with the general processes associated with democratization, variables to capture both democratic levels and change are included. Since it is reasonable to assume that fair criminal justice is more likely to be suspended during national emergencies, civil and international wars are included. Fair trials could also be a function of development level (GDP/capita) or external influences, such as development assistance; both of these are controlled in what follows. In addition, I control for extraordinary efforts to improve government accountability with respect to human rights practices with controls for truth commissions and criminal trials aimed at prosecuting officials for criminal human rights violations. As above, robust standard errors with a correction for clustering on country are reported.

Oona Hathaway pioneered research in this area, and found that ratification of the ICCPR had little effect on state practices with respect to fair trials. Quite the contrary: some analyses of her evidence suggest that rights practices worsen once a treaty commitment has been made. However, I am interested not only in the aggregate effects of the ICCPR with respect to fair trials,

99

Unfortunately, in this case, the common law variable is unlikely to make a good instrument. According to some legal scholars, the idea of a fair trial for those accused of crimes is a contribution of the common law tradition, with its emphasis on “fair play.” See for example Matscher 2000: 10. Thus, identification in this case depends almost exclusively on regional ratification density in the previous period.

Figure

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